ALJDEC

01F-F0208-ROC · Registrar of Contractors · 2001-09-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2001.

APPEARANCES: The Complainant, James Boylston, now deceased, and his Estate appeared through the appointed Personal Representative, Wiley Williams. The Respondent, Home Tec International, Inc., was represented by its attorney, Dwight O. Watland, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

At the outset of the scheduled hearing, an amendment to the complaint and to the case caption was permitted so as to reflect that the named Complainant was

now deceased and that the “Estate of James Boylston” is an additional Co- Complainant in this administrative action. Letters Testamentary were shown to have been issued to Wiley Williams, as Personal Representative, and Ms. Williams appeared at and participated in the hearing.

2. Following a prolonged discussion between the parties soon after the formal opening of the scheduled hearing, with the Administrative Law Judge and the Registrar’s assigned Inspector remaining present, the parties concluded a settlement agreement, the essential terms of which were read upon the record.

3. Pursuant to the terms of the parties’ settlement agreement, Respondent agreed, within a stated time period, to prepare as-built plans and to apply for proper municipal permits at its expense, and after ultimately obtaining such permits, to thereafter, within another specified time frame, accomplish all necessary remedial work on the present carport so as to comply with applicable local code provisions. Respondent also agreed to acceptably level the floor in the added den, to remove a designated feature that had been re-positioned in that room and to properly restore the disturbed surfaces in the location of the removed feature, including walls, ceiling, roof and floor covering areas. All contemplated work was to be performed by Respondent in a proper, workmanlike manner, and Respondent further agreed to keep Complainant’s personal representative apprised of the progress of plan and permit approval by the municipality.

It was agreed on behalf of Complainant and his Estate that all other items of complaint, filed or not yet filed, that are presently known or that reasonably should be known, are expressly withdrawn, and that Complainant and his Estate are consenting to an entry of an Order by the Registrar of Contractors closing the Citation issued in this

case. Complainant further agreed to grant reasonable and timely access to the premises, upon reasonable advance notice, to Respondent or to its selected specialty subcontractors for the purpose of performing the agreed corrective work.

5. The parties agreed that all of their respective rights and defenses were to be merged into the settlement agreement and if any timely petition for rehearing of this matter is to be filed and granted, or if any new complaint is filed, the sole issues for determination shall be whether the parties have performed their respective obligations under the terms of the aforesaid settlement agreement.

6. The entry into the settlement agreement was expressly without any admission of fault or responsibility on the part of Respondent and, correspondingly, without any admission on the part of Complainant or his Estate that they were not entitled to greater benefits.

7. Respondent acknowledged its awareness that these disciplinary proceedings before the Registrar are being cut short by the parties’ mutual entry into the settlement agreement, and that in the event of any ultimately proven breach by Respondent of its obligations under the agreement, such breach will form the basis of a timely petition for rehearing or the filing of a new complaint, also warranting treatment as a potential matter in aggravation.

8. The terms of the forgoing settlement appeared to be fair and reasonable under all the circumstances and the agreement was determined to be the product of knowing and voluntary action on the part of each party.

CONCLUSIONS OF LAW

1. The policy of the law favors settlements of disputes, and adverse parties should be free to adjust their differences by entry into agreements or stipulations of settlement which should be recognized and given effect by all tribunals.

2. The settlement reached and submitted during the hearing of this matter, having been found to be reasonable and voluntarily made, warrants the termination of the instant hearing and the closing of all charges in the issued Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number F01-0208 be closed.

Dated: September 17, 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826